Opponents of Bottling Plant Set Stage for Appeal

Attorneys for plaintiffs ask for judgment so they can send case to Montana Supreme Court

By Tristan Scott
Flathead Lake and farm land near Creston. Beacon file photo.

Opponents of a water bottling plant near Creston are preparing to appeal their case to the Montana Supreme Court and last week asked a district judge in Flathead County to issue a final judgment on two remaining claims surrounding zoning issues.

Resolving the claims would allow plaintiffs in the case against Montana Artesian Water Company (MAWC) to appeal the matter before the state’s high court, which community groups and neighbors opposed to the bottling facility say they are prepared to do.

The lawsuit — filed by the Egan Slough Community, Yes! For Flathead Farms and Water, and resident Amy Waller — was originally filed in 2018 in Flathead County District Court against the Flathead County Commission, the Flathead County Planning Department, the Flathead City-County Health Department, and MAWC.

At issue in the legal battle surrounding the bottling plant is whether a June 2018 ballot initiative that passed with 70 percent of the vote prohibits industrial operations like MAWC, whose legal counsel argues is exempt as a “pre-existing non-conforming use” occurring prior to passage of the new zoning rule.

Flathead County District Judge Robert Allison agreed with that assessment in a decision last year, ruling against plaintiffs seeking to resolve the lawsuit through summary judgment.

“The Court finds insufficient evidence to allow it to conclude the [Flathead County Planning and Zoning] office abused its discretion in determining MAWC’s land use as a water bottling facility is a legal, nonconforming use pursuant to” the initiative’s regulations.

Although Allison ruled against the plaintiffs in their primary claims, he did not enter judgments on two remaining claims brought under the Uniform Declaratory Judgment Act because those were rendered moot, nor did he issue judgments on the defendants’ cross-claims arguing that Flathead County has “taken” something from MAWC by enacting the new zoning rule, which the defendants say amounts to “spot zoning.”

Now, the plaintiffs are asking for an additional procedural step so they may appeal to the Montana Supreme Court — a step they say Flathead County does not oppose, but to which MAWC objects.

“Flathead County, like the plaintiffs, believes that the interests of justice are best served by allowing this case to go to the Montana Supreme Court to address zoning issues of first impression,” the motion states. “MAWC takes a different tack, arguing that entry of any judgment in this case is precluded because there remain claims that are ‘valid and justiciable,’ i.e. MAWC’s remaining cross-claims. Yet MAWC cannot explain why this Court should, for example, litigate its takings claim when this Court has determined that MAWC can legitimately currently operate and nothings has been ‘taken.’”

According to plaintiffs’ attorneys, the case boils down to the constitutional right to governance of Flathead County citizens, including the right to make local land use decisions by initiative — “something this court has already ruled was a legal exercise of their rights,” according to plaintiffs’ motion for entry of judgment.

“Plaintiffs’ efforts, however, were frustrated by actions and inactions of the Flathead County Commissioners and the Flathead County Zoning Department, which caused them to bring this lawsuit.”

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